Six days into a Canadian Judicial Council hearing to determine whether Judge Cosgrove harboured bias against the Crown, the 73-year-old former federal cabinet minister said that he ”sincerely and unreservedly” regrets besmirching the reputations of Crown counsel and police officers who became caught up in the case.
Judge Cosgrove also offered to never preside over another case involving the Crown if the CJC will permit him to remain on the bench.
Judge Cosgrove confessed that his missteps at the 1998 trial of Julia Elliott embarrassed a host of officials – including senior Crown administrators who had nothing to do with the proceeding – and that his errors ended up wasting a great deal of money and court resources.
”I stand before you humbled and chastened,” Judge Cosgrove told the CJC panel. ”This experience has driven home the need for me to make this apology to those affected by my actions.
”In particular, I regret any intemperate, denigrating or unfair language I may have used in what was the most stressful trial of my career.”
In staying Ms. Elliott's murder charge at the end of the trial, Judge Cosgrove cited 150 breaches of her Charter rights by police and Crown officials.
”I have thought about that trial virtually every day for 10 years,” Judge Cosgrove said Wednesday. ”It was like nothing I'd seen before – or since. At times, I lost my way.”
In 2003, the Ontario Court of Appeal ordered a retrial of the Elliott case and repeatedly singled out Judge Cosgrove out for criticism.
Shortly afterward, Attorney-General Michael Bryant lodged a complaint about his conduct with the CJC. In the years since, Judge Cosgrove has waged a courtroom battle over the constitutionality of the CJC's powers.
Judge Cosgrove said Wednesday that, while he has come to accept the stinging Court of Appeal judgment without reservation, it failed at the time to dislodge his abiding belief that he had kept an open mind and done his best to conduct the Elliott trial fairly.
Following Judge Cosgrove's apology, an independent counsel acting for the CJC – Earl Cherniak – said that he no longer believes there are grounds to remove Judge Cosgrove from the bench.
Mr. Cherniak said that, in light Judge Cosgrove's change in attitude, a ”strong and pointed admonition” from the entire CJC would suffice as punishment.
”This is a clear statement that the ongoing process has led to him understanding, ... and it is reasonable to assume that the conduct that led to this inquiry is unlikely to repeated,” Mr. Cherniak said.
He said that the decision to remove a judge from office is extreme, and that Judge Cosgrove's conduct now falls below that of judges who committed sins of ”corruption or moral turpitude.”
During the Elliott trial, a hard-driving defence lawyer Dan Murphy – who has since been hired by the federal Department of Justice – made repeated accusations that the Crown and police had concealed or misrepresented evidence.
Judge Cosgrove said Wednesday that he was obviously not up to the task of reining in Mr. Murphy's ”extravagant rhetoric” – or the aggressive responses that it had elicited from the Crown.
”With hindsight, my attempts only met with modest success,” Judge Cosgrove said. ”It is evident to me now that I did not intervene often, or forcefully, enough.”
In making his unusual offer to refrain from sitting on any cases involving the federal or provincial Crown, Judge Cosgrove said that it would be ”inappropriate” for him to hear any such cases.
He stressed that his near-brush with removal has been an epiphany to him, and reinforced how much he cares about his job: ”Aside from my family and my faith, being a judge is the most important thing in my life,” he said.
In a submission afterward to the CJC panel, Judge Cosgrove's lawyer – Chris Paliare – proffered a sheaf of supporting letters from fellow judges and lawyers who have appeared before the judge.
Mr. Paliare said it is paradoxical that some of the lawyers noted in their letters that, if anything, Judge Cosgrove was generally considered to be a judge who was more ”pro-Crown” than favourable to the defence.
Since the CJC hearing began on Sept. 2, Mr. Cherniak has read in hundreds of excerpts of trial transcript in which Judge Cosgrove made intemperate remarks or failed to deal properly with allegations from counsel.
On Thursday, Mr. Cherniak intended to start calling witnesses connected to the Elliott trial – two Crown counsel, a police officers and a member of the murder victim's family – to testify about the effects his conduct had on them.
Judge Cosgrove said that hearing his words read out in the inquiry room in recent days had a ”profound” effect on him, Judge Cosgrove said.
”It caused me to relive the trial, but from an entirely different perspective,” he said.
Only a handful of judges have ever faced a public misconduct inquiry, and none has ever been forced through the most severe sanction that can ensue – a parliamentary vote to remove him from the bench.
Judge Cosgrove said that there is no more ”traumatic ordeal” a judge can have than to face removal after a searing public hearing convened by one's peers.
”I recognize that a judge must exhibit a high standard of judicial conduct in order to enforce and reinforce public confidence,” he said. ”I want to assure the inquiry committee that I have and will dedicate myself to reaching those high standards.”
After hearing submissions from the lawyers, the CJC will decide whether to continue hearing evidence or to close the hearing and deliver its recommendation to the full Council.